Some thoughts on bijuralism
in Canada and the world

PART II
Forms of Coexistence of the
Two Legal Traditions in Canada

An understanding of bijuralism calls for an analysis of a fundamental notion, the notion of mixed law. This notion is not a priori hard to understand—it means a system of law whose institutions derive from different legal systems and result from the cumulative application, or from the interaction, of techniques belonging to those systems.

The notions of "bijuralism" and "mixed law" do not describe the same aspects of reality. Two legal systems may coexist within a single state without interacting, in which case that state may be considered "bijural", but not as having a mixed legal system. Canada is said to be a bijural country because civil law is the common law of Quebec and common law that of the rest of Canada. However, Federal law is also a mixed law since its development, interpretation and application are based on the common law of each province.

Certain writers hold that the reciprocal action of two coexisting legal systems may manifest itself in various ways, in particular:

  1. By the cumulative application to a single institution of rules deriving from either of those systems—substantive rules belonging to one system and formal rules to the other, for example;
  2. By an interaction of their respective rules that leads the legislator or the interpreter of the legislation to proceed with the harmonization or necessary coordination of relations between the two legal systems.

The rules, concepts or institutions of one of the systems may implicitly or explicitly influence the drafting, interpretation and application of the rules, notions and institutions of the other. The rules, notions or institutions of one of the systems may, with the appropriate changes, be incorporated in the other system.

The rules, notions and institutions of the two systems may furthermore interact with each other.

Thus it may be said that the evolution of coexisting legal systems may be characterized by their relations of influence, integration and interaction. In Canada, the two legal traditions coexist in these two ways at the national level: at times they influence each other, at other times, they interact.

The following section discusses the relationship of interaction, which in Canada is properly known as complementarity. But first, what about relationships of influence and integration?

Influence through interpretation or integration

Are the civil law and common law as dissimilar as one might be inclined to believe? Some writers state that many differences between the civil law and common law systems are more apparent than real,[22] resulting much more, in their view, from the manner and order of presentation of the rules than from their content, and that the few substantive differences can mainly be explained as a matter of historical accident.[23]

The convergence in Western society today largely transcends the national systems which in some instances have perhaps been contrasted to an exaggerated degree in comparative law. In fact, the similarities between civil law and common law are much greater than are the technical differences.

These similarities are often the result of the influences the two have had on each other over time: Quebec civil law, for example, is definitely a faithful reflection of French law, but the latter is in philosophical agreement with English law.

The common law thus plays a very great role in Quebec private law in both formal and substantive terms. The form of judgments, for example, reveals a very clear relationship with the common law. Case law illustrates the mixed nature of Quebec law—the task of Quebec judges, as civil law judges, is not to restate a rule established by a court on the basis of the facts before them. Like French judges, they apply an abstract rule to specific facts. Unlike French judges, Quebec judges, like common law judges, explain their reasoning. They generally proceed with a detailed analysis of the rule, of previously applied judgments and of the relevant doctrine, then set out the reasons leading them to apply the rule to the facts before them.

As to substance, the influence of the common law is apparent in two major respects: interpretation of the Civil Code of Quebec and law reform.

Following the adoption of the Civil Code of Lower Canada, a number of judges resorted to common law rules as instruments of interpretation. Application of the common law was not limited at the time to rules based on English law. Its approach was not based on a comparative law method whose purpose was to find the most appropriate solution to the situation, but rather, to interpret the rules of civil law so that they would lead to solutions identical to common law rules.

Today, since Quebec's civil law enjoys full autonomy, judges ensure that the specificity of the two systems is respected, without depriving themselves of the wealth of lessons afforded by comparative legal analysis. The Supreme Court of Canada often adopts a comparative method, drawing at times on the civil law in a common law context.

The common law, or more precisely the statute law existing in common law jurisdictions including the United States and the other Canadian provinces, in turn exercises an influence on Quebec law. In the 1960s, the Quebec legislature drew on it when it proposed to reform the law, passing an act amending the Civil Code, An Act to protect borrowers from certain abuses and lenders from certain privileges, which was patterned on an Ontario statute, The Unconscionable Transactions Relief Act. Similarly, the reform of insurance law and development of rules respecting family patrimony followed upon studies concerning, among other things, the law of the other Canadian provinces.

Interaction between the two legal traditions: the relationship of complementarity and its exception, dissociation

In parallel with the influences the legal systems exercise on each other, the reciprocal action of those systems may also manifest itself through the interaction of their respective rules and principles.

In Canada, the division of legislative powers has established relationships of complementarity between the law of the provinces and federal law. By conferring exclusive authority over property and civil rights on the provinces, subsection 92(13) of the Constitution Act, 1867 forms the basis of the complementarity between federal law and provincial private law. Only standards adopted by the provincial legislatures can supplement federal instruments that are silent on a matter pertaining to property and civil rights that is essential to their implementation.

There is nevertheless a notable exception to this rule. Under the general theory of the division of powers, provincial private law cannot be applied on a supplementary basis to offset Parliament's default in exercising its primary power over a matter:

"The abstinence of the Dominion Parliament from legislating to the full limit of its powers, could not have the effect of transferring to any provincial legislature the legislative power which had been assigned to the Dominion […]"[24]

The private law of a province will thus apply only in matters under Parliament's ancillary power, that is to say in an area falling mainly under provincial jurisdiction under subsection 92(13) of the Constitution Act, 1867, but which may be governed by Parliament to the extent required for the furtherance of an objective under Parliament's exclusive authority.

For these reasons, the expression "property and civil rights" ("propriété et droits civils") has come to mean the field of private law stricto sensu in general—except matters under federal jurisdiction—as well as certain fields of public law, particularly administrative law, as it relates to private law. As noted by Professor Hogg:

"In other words, the evolution of our laws has now swept much public law onto the rubric which was originally designed to exclude public law."[25]

The ties that bind the civil law to federal statutes are analogous to those between the legislation of the Province of Quebec and the Civil Code of Quebec. Quebec's Civil Code establishes Quebec's common law and is capable of supplementing other statutes. This correlation also exists between federal law and the private law of the other provinces, although it is less apparent, because those provinces have the same fundamental law in common (the common law), which moreover is visibly present in the federal statutes. This facilitates their interpretation and administration in the provinces with this private law legal tradition in common. In this context, the notion of suppletive law, which forms the basis of the complementarity principle, is decisive.

The question of the civil law's complementarity with federal legislation, particularly with regard to what differentiates the various types of interactions, remains to be considered in greater depth. This question arises each time a provision in a federal statute relies directly or indirectly on a private law concept. The specific fields of law governed by federal acts, bills of exchange, banks and bankruptcy, for example, often raise this issue.

As Parliament has only limited power in private matters, provincial law thus applies in principle in supplementing federal legislation. The civil law supplements the federal act through the implicit dependence of such a federal statute on the common law system governing relations between individuals in the province. The civil law can also supplement a federal act via a formal reference to it in the federal law. For example, subsection 91(4) of the Canada Marine Act provides:

(4) A lease or licence may be effected by any instrument by which real property may be leased or a licence may be granted by a private person under the laws in force in the province in which the property is situated.

Subsection 21(1) of the Crown Liability and Proceedings Act, as amended by Bill S 4, A First Act to harmonize federal law with the civil law of Quebec, tabled in the Senate last January, is another example:

c) In all cases where a claim is made against the Crown, except where the Federal Court has exclusive jurisdiction with respect to it, the superior court of the province in which the claim arises has concurrent jurisdiction with respect to the subject-matter of the claim.

Where it must be determined which creditors will be preferred over others in bankruptcy, the Bankruptcy and Insolvency Act provides for such determination by reference to concepts of provincial private law which, in Quebec, are stated in the Civil Code of Quebec.

Parliament further relies, implicitly or expressly, on private law where it refers in the Income Tax Act to the concepts of trust and hypothec.

Parliament may also expressly disregard the common law of the province and choose another law of reference.

The complementarity that links federal law with the civil law, like that between federal law and the law of the other provinces in the same circumstances, is the cornerstone of work being done by the Department of Justice Canada and of the efforts here being made to ensure that the particular characteristics and advantages of that work are understood. How has Canada's Parliament gone about establishing complementarity? Before answering this question, the concept of dissociation, which is an exception to complementarity, will briefly be addressed.

In a work published in 1996 for the Department of Justice Canada, Professors Morel and Brisson mention that there are exceptions to the rule of complementarity which they characterize as dissociations. In such cases, a standard foreign to the private law of the province of application corrects the incompleteness of the federal legislation, thus excluding any suppletive application of the law of that province. It will be said of such standards that they display no relationship of complementarity with the provincial law. Consequently, an area of activity will be said to be of "autonomous federal law" where all legislative standards governing it maintain this kind of relationship of dissociation.

Thus we will consider the sources of dissociation where, in choosing a law other than that of Quebec to supplement silences in its legislation, Parliament excludes all application. The degree of dissociation of federal law from the civil law is moreover subject to variation—the dissociation can be absolute or relative.

Section 2 of the Federal Court Act,[26] is a prime example of implicit dissociation.

The Supreme Court considered this section in ITO—International Terminal Operators v. Miida Electronics Inc.[27] The approach adopted by the Supreme Court of Canada in defining the scope of Parliament's legislative powers in navigation and shipping differed from the traditional approach previously used to consider the constitutionality of statutes.[28] To determine the scope of Parliament's legislative powers in the matter, the Supreme Court relied instead on the expression "Canadian maritime shipping"contained in the Federal Court Act, rather than "navigation and shipping" in subs. 91(10). The Federal Court, created in 1971, assumed the admiralty jurisdiction previously conferred upon the Exchequer Court. Its original act clarifies and expands this jurisdiction by assigning it the administration of "Canadian maritime law". This law is defined in section 2 as follows:

"Canadian maritime law"means the law that was administered by the Exchequer Court of Canada on its admiralty side by virtue of the Admiralty Act, chapter A 1 of the Revised Statutes of Canada, 1970, or any other statute, or that would have been so administered if that Court had had, on its Admiralty side, unlimited jurisdiction in relation to maritime and admiralty matters, as that law has been altered by this Act or any other Act of Parliament.

In the wake of a lengthy series of judgments concerning the Federal Court's jurisdiction, the Supreme Court recognized in ITO v. Miida Electronics Inc. the existence of a uniform Canadian maritime law covering the entire field of federal jurisdiction in the matter and excluding the supplementary use of provincial law.[29] Based essentially on the common law of England, it held, Canadian maritime law thus embraces certain principles originating in English maritime law which have been received in Canada law.

As maritime law has been defined by the Supreme Court as autonomous law, the concept of dissociation thus applies in that the application of this provision bars the supplementary application of the law of the provinces.

The reciprocal action of these two legal systems can thus manifest itself in various ways and it is in the interaction of their respective rules and principles, as it sometimes leads the legislator or the interpreter of the act to proceed with the harmonization or necessary coordination of their relations, that the most interesting phenomena are discerned.

The realization of the Complementarity relationship

The process of harmonizing federal statutes with the new terminology and concepts of the recent Civil Code of Quebec and bijural and bilingual legislative drafting techniques put into place with respect to the Harmonization Project of the Department of Justice Canada validate precisely these relationships of complementarity, while at the same time respecting the just discussed notion of dissociation. The experiment in this field is unique to Canada and, as Senator Gérald A. Beaudoin[30] said during the debate on Bill S 22, A First Bill to harmonize the federal law with the civil law, tabled in the Senate on May 11, 2000, "gives us weight on the international scene".

This experience has quite naturally resulted in a certain number of neologisms and new concepts and in the development of new research and harmonization techniques. The Civil Code Section has undertaken to systematize these harmonization techniques in view of the extensive methodological implications of the harmonization process.

First methodological implication

The first methodological implication derives from analysis of the interaction between federal statutes and the civil law. The singular nature of the harmonization approach stems from the nature of the ties that bind federal law to the civil law of Quebec.

Describing the successive stages of reasoning justifying a legislative amendment recommendation, the harmonization process makes it possible, based on a preferred characterization model, to identify provisions likely to be harmonized and to obtain the most appropriate harmonization solutions. In a given legal situation, the following questions will thus be asked:

  1. What is the intention of the legislator that presided over the establishment of the federal standard?
  2. What is the linguistic and conceptual vehicle?
  3. Is it a civil law or common law situation and which of the four audiences—civil law Francophones, civil law Anglophones, common law Francophones, common law Anglophones—does it concern?
  4. What solution is likely to result in a bijural situation?
  5. Does the chosen solution result in a linguistic or conceptual change, or both?
  6. What is the most effective methodological and drafting technique for meeting the objective?
  7. Lastly, what is the impact of the amendments thus proposed?

In the context of the harmonization work under way at the Department of Justice Canada, a legal situation can be considered either unijural or semi-bijural.[31]

Second methodological implication

The second methodological implication follows from the first, and that is that rules must be established for legislative drafting and harmonization. Here follow some guidance for the drafting and interpretation of future statutes:

Although both versions of a federal legislation are equally authoritative, it is important to ensure that the civil law and common law concepts used or eventually proposed are each given the meaning they have in the legal system in which they originate and which is in effect in the province in which the statute is applied. This is of course a laudable objective, but recommending and drafting amendments to given provisions is never an easy matter where complex questions must be resolved. Federal legislation must simultaneously address four audiences and be both bilingual and bijural.

The creation of new terms and the development of new research techniques is thus accompanied by new legislative drafting techniques or, it might also be said, harmonization methods such as the double, either simple or paragraphed, which consists in expressing, through different terms, the legal rule applicable to each legal system, or neutral terminology, that is employing neutral terms that have no connotation in either legal system.[32]

All these reflections on the forms of coexistence of the two legal traditions in Canada leads us to recognize that the interaction of two systems can influence the evolution of one or the other, and sometimes even both. Canada is not the only country in which these phenomena are found. Studies of Canadian bijuralism can be enhanced by consideration of legal systems elsewhere in the world. The United Kingdom, the United States, and Europe provide examples of other possible forms of interaction between these legal systems.

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